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The elements of serious injury and imminent threat of serious injury not having been established, it is

hereby recommended that no definitive general safeguard measure be imposed on the importation of gray

Portland cement.[7]

The DTI sought the opinion of the Secretary of Justice whether it could still impose a

definitive safeguard measure notwithstanding the negative finding of the Tariff Commission.

After the Secretary of Justice opined that the DTI could not do so under the SMA,

[8]

the DTI

Secretary then promulgated a Decision[9]

wherein he expressed the DTIs disagreement with

the conclusions of the Tariff Commission, but at the same time, ultimately denying Philcemcorsapplication for safeguard measures on the ground that the he was bound to do so in light of the

Tariff Commissions negative findings.[10]

Philcemcor challenged this Decisionof the DTI Secretary by filing with the Court of Appeals

a Petition for Certiorari, Prohibition and Mandamus[11]

seeking to set aside the DTI Decision,as

well as the Tariff Commissions Report. It prayed that the Court of Appeals direct the DTISecretary to disregard the Report and to render judgment independently of the Report.

Philcemcor argued that the DTI Secretary, vested as he is under the law with the power of

review, is not bound to adopt the recommendations of the Tariff Commission; and, that the

Report is void, as it is predicated on a flawed framework, inconsistent inferences and erroneous

methodology.[12]

The Court of Appeals Twelfth Division, in a Decision[13]

penned by Court of Appeals

Associate Justice Elvi John Asuncion,

[14]

partially granted Philcemcors petition. The appellatecourt ruled that it had jurisdiction over the petition for certiorari since it alleged grave abuse of

discretion. While it refused to annul the findings of the Tariff Commission,[15]

it also held that

the DTI Secretary was not bound by the factual findings of the Tariff Commission since suchfindings are merely recommendatory and they fall within the ambit of the Secretarys

discretionary review. It determined that the legislative intent is to grant the DTI Secretary the

power to make a final decision on the Tariff Commissions recommendation.[16]

On 23 June 2003, Southern Cross filed the present petition, arguing that the Court of

Appeals has no jurisdiction over Philcemcors petition, as the proper remedy is a petition forreview with the CTA conformably with the SMA, and; that the factual findings of the Tariff

Commission on the existence or non-existence of conditions warranting the imposition of

general safeguard measures are binding upon the DTI Secretary.

Despite the fact that the Court of Appeals Decisionhad not yet become final, its binding

force was cited by the DTI Secretary when he issued a new Decisionon 25 June 2003, whereinhe ruled that that in light of the appellate courts Decision, there was no longer any legal

impediment to his deciding Philcemcors application for definitive safeguard measures.[17]

He

made a determination that, contrary to the findings of the Tariff Commission, the local cement

industry had suffered serious injury as a result of the import surges.[18]

Accordingly, he imposed

a definitive safeguard measure on the importation of gray Portland cement, in the form of a

definitive safeguard duty in the amount of P20.60/40 kg. bag for three years on imported gray

thern Cross Cement Corp vs Cement Manufacturers Assn of the Phi... http://sc.judiciary.gov.ph/jurisprudence/2005/aug2005/158540.htm

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Portland Cement.[19]

On 7 July 2003, Southern Cross filed with the Court a Very Urgent Application for a

Temporary Restraining Order and/or A Writ of Preliminary Injunction (TRO Application),

seeking to enjoin the DTI Secretary from enforcing his Decision of 25 June 2003 in view of the

pending petition before this Court. Philcemcor filed an opposition, claiming, among others, that

it is not this Court but the CTA that has jurisdiction over the application under the law.

On 1 August 2003, Southern Cross filed with the CTA a Petition for Review, assailing the

DTI Secretarys 25 June 2003 Decisionwhich imposed the definite safeguard measure. Yet

Southern Cross did not promptly inform this Court about this filing. The first time the Court would

learn about this Petitionwith the CTA was when Southern Cross mentioned such fact in a

pleading dated 11 August 2003 and filed the next day with this Court.[20]

Philcemcor argued before this Court that Southern Cross had deliberately and willfully

resorted to forum-shopping; that the CTA, being a special court of limited jurisdiction, could only

review the ruling of the DTI Secretary when a safeguard measure is imposed; and that the

factual findings of the Tariff Commission are not binding on the DTI Secretary.[21]

After giving due course to Southern Crosss Petition, the Court called the case for oral

argument on 18 February 2004.[22]

At the oral argument, attended by the counsel for

Philcemcor and Southern Cross and the Office of the Solicitor General, the Court simplified the

issues in this wise: (i) whether the Decisionof the DTI Secretary is appealable to the CTA or the

Court of Appeals; (ii) assuming that the Court of Appeals has jurisdiction, whether its Decisionis

in accordance with law; and, whether a Temporary Restraining Orderis warranted.[23]

After the parties had filed their respective memoranda, the Courts Second Division, towhich the case had been assigned, promulgated its Decisiongranting Southern Crosss Petition.

[24]The Decision was unanimous, without any separate or concurring opinion.

The Court ruled that the Court of Appeals had no jurisdiction over Philcemcors Petition, the

proper remedy under Section 29 of the SMA being a petition for review with the CTA; and that

the Court of Appeals erred in ruling that the DTI Secretary was not bound by the negative

determination of the Tariff Commission and could therefore impose the general safeguard

measures, since Section 5 of the SMA precisely required that the Tariff Commission make apositive final determination before the DTI Secretary could impose these measures. Anent the

argument that Southern Cross had committed forum-shopping, the Court concluded that therewas no evident malicious intent to subvert procedural rules so as to match the standard under

Section 5, Rule 7 of the Rules of Court of willful and deliberate forum shopping. Accordingly, the

Decisionof the Court of Appeals dated 5 June 2003 was declared null and void.

The Court likewise found it necessary to nullify the Decisionof the DTI Secretary dated 25June 2003, rendered after the filing of this present Petition. This Decisionby the DTI Secretary

had cited the obligatory force of the null and void Court of Appeals Decision, notwithstanding

the fact that the decision of the appellate court was not yet final and executory. Considering that

the decision of the Court of Appeals was a nullity to begin with, the inescapable conclusion was

that the new decision of the DTI Secretary, prescinding as it did from the imprimatur of the

decision of the Court of Appeals, was a nullity as well.

After the Decisionwas reported in the media, there was a flurry of newspaper articles citing

alleged negative reactions to the ruling by the counsel for Philcemcor, the DTI Secretary, and


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others.[25]

Both respondents promptly filed their respective motions for reconsideration.

On 21 September 2004, the Court En Bancresolved, upon motion of respondents, to accept

the petition and resolve the Motions for Reconsideration.[26]

The case was then reheard[27]

on

oral argument on 1 March 2005. During the hearing, the Court elicited from the parties their

arguments on the two central issues as discussed in the assailed Decision, pertaining to the

jurisdictional aspect and to the substantive aspect of whether the DTI Secretary may impose ageneral safeguard measure despite a negative determination by the Tariff Commission. The

Court chose not to hear argumentation on the peripheral issue of forum-shopping,[28]

although

this question shall be tackled herein shortly. Another point of concern emerged during oralarguments on the exercise of quasi-judicial powers by the Tariff Commission, and the parties

were required by the Court to discuss in their respective memoranda whether the Tariff

Commission could validly exercise quasi-judicial powers in the exercise of its mandate under

the SMA.

The Court has likewise been notified that subsequent to the rendition of the Courts

Decision, Philcemcor filed a Petition for Extensionof the Safeguard Measurewith the DTI,

which has been referred to the Tariff Commission.[29]

In an Urgent Motion dated 21 December

2004, Southern Cross prayed that Philcemcor, the DTI, the Bureau of Customs, and the Tariff

Commission be directed to cease and desist from taking any and all actions pursuant to or

under the null and void CA Decision and DTI Decision, including proceedings to extend the

safeguard measure.[30]

In a Manifestation and Motion dated 23 June 2004, the Tariff

Commission informed the Court that since no prohibitory injunction or order of such nature had

been issued by any court against the Tariff Commission, the Commission proceeded to

complete its investigation on the petition for extension, pursuant to Section 9 of the SMA, but

opted to defer transmittal of its report to the DTI Secretary pending guidance from this Courton the propriety of such a step considering this pending Motion for Reconsideration. In a

Resolution dated 5 July 2005, the Court directed the parties to maintain the status quo effective

of even date, and until further orders from this Court. The denial of the pending motions for

reconsideration will obviously render the pending petition for extension academic.

I. Jurisdiction of the Court of Tax Appeals

Under Section 29 of the SMA

The first core issue resolved in the assailed Decisionwas whether the Court of Appeals had

jurisdiction over the special civil action for certiorari filed by Philcemcor assailing the 5 April

2002 Decisionof the DTI Secretary. The general jurisdiction of the Court of Appeals over special

civil actions for certiorari is beyond doubt. The Constitution itself assures that judicial review

avails to determine whether or not there has been a grave abuse of discretion amounting to lack

or excess of jurisdiction on the part of any branch or instrumentality of the Government. At thesame time, the special civil action of certiorari is available only when there is no plain, speedy

and adequate remedy in the ordinary course of law.[31]

Philcemcors recourse of special civil

action before the Court of Appeals to challenge the Decision of the DTI Secretary not to impose

the general safeguard measures is not based on the SMA, but on the general rule on certiorari.

Thus, the Court proceeded to inquire whether indeed there was no other plain, speedy andadequate remedy in the ordinary course of law that would warrant the allowance of Philcemcors

special civil action.


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the petition must be filed by an interested party adversely affected by the ruling; and (iii) such

ruling must be in connection with the imposition of a safeguard measure. Obviously, there aredifferences between a ruling for the imposition of a safeguard measure, and one issued in

connection with the imposition of a safeguard measure. The first adverts to a singular type of

ruling, namely one that imposes a safeguard measure. The second does not contemplate only

one kind of ruling, but a myriad of rulings issued in connection with the imposition of a

safeguard measure.

Respondents argue that the Court has given an expansive interpretation to Section 29,contrary to the established rule requiring strict construction against the existence of jurisdiction

in specialized courts.[35]

But it is the express provision of Section 29, and not this Court,

that mandates CTA jurisdiction to be broad enough to encompass more than just a ruling

imposing the safeguard measure.

The key phrase remains in connection with. It has connotations that are obvious even to

the layman. A ruling issued in connection with the imposition of a safeguard measure would be

one that bears some relation to the imposition of a safeguard measure. Obviously, a ruling

imposing a safeguard measure is covered by the phrase in connection with, but such ruling is

by no means exclusive. Rulings which modify, suspend or terminate a safeguard measure are

necessarily in connection with the imposition of a safeguard measure. So does a ruling allowingfor a provisional safeguard measure. So too, a ruling by the DTI Secretary refusing to refer the

application for a safeguard measure to the Tariff Commission. It is clear that there is an entire

subset of rulings that the DTI Secretary may issue in connection with the imposition of a

safeguard measure, including those that are provisional, interlocutory, or dispositive in

character.[36]

By the same token, a ruling not to impose a safeguard measure is also issued inconnection with the imposition of a safeguard measure.

In arriving at the proper interpretation of in connection with, the Court referred to the U.S.

Supreme Court cases of Shaw v. Delta Air Lines, Inc.[37]

and New York State Blue Cross Plans

v. Travelers Ins.[38]

Both cases considered the interpretation of the phrase relates to as used

in a federal statute, the Employee Retirement Security Act of 1974. Respondents criticize the

citations on the premise that the cases are not binding in our jurisdiction and do not involve

safeguard measures. The criticisms are off-tangent considering that our ruling did not call for the

application of the Employee Retirement Security Act of 1974 in the Philippine milieu. The

American cases are not relied upon as precedents, but as guides of interpretation. Certainly, ifthere are applicable local precedents pertaining to the interpretation of the phrase in connection

with, then these certainly would have some binding force. But none avail, and neither do therespondents demonstrate a countervailing holding in Philippine jurisprudence.

Yet we should consider the claim that an expansive interpretation was favored in Shaw

because the law in question was an employees benefit law that had to be given an

interpretation favorable to its intended beneficiaries.[39]

In the next breath, Philcemcor notes

that the U.S. Supreme Court itself was alarmed by the expansive interpretation in Shaw and

thus in Blue Cross, the Shaw ruling was reversed and a more restrictive interpretation was

applied based on congressional intent.[40]

Respondents would like to make it appear that the Court acted rashly in applying a

discarded precedent in Shaw, a non-binding foreign precedent nonetheless. But the Court did

make the following observation in its Decisionpertaining to Blue Cross:


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Now, let us determine the maximum scope and reach of the phrase in connection with as used in

Section 29 of the SMA. A literalist reading or linguistic survey may not satisfy. Even the U.S. Supreme

Court inNew York State Blue Cross Plans v. Travelers Ins.[41]

conceded that the phrases relate to or in

connection with may be extended to the farthest stretch of indeterminacy for, universally, relations or

connections are infinite and stop nowhere.[42]

Thus, in the case the U.S. High Court, examining the

same phrase of the same provision of law involved in Shaw, resorted to looking at the statute and its

objectives as the alternative to an uncritical literalism. A similar inquiry into the other provisions

of the SMA is in order to determine the scope of review accorded therein to the CTA.[43]

In the next four paragraphs of the Decision, encompassing four pages, the Court proceeded

to inquire into the SMA and its objectives as a means to determine the scope of rulings to be

deemed as in connection with the imposition of a safeguard measure. Certainly, this Court did

not resort to the broadest interpretation possible of the phrase in connection with, but instead

sought to bring it into the context of the scope and objectives of the SMA. The ultimate

conclusion of the Court was that the phrase includes all rulings of the DTI Secretary which arise

from the time an application or motu proprio initiation for the imposition of a safeguard measure

is taken.[44]

This conclusion was derived from the observation that the imposition of a general

safeguard measure is a process, initiated motu proprioor through application, which undergoes

several stages upon which the DTI Secretary is obliged or may be called upon to issue a ruling.

It should be emphasized again that by utilizing the phrase in connection with, it is the SMA

that expressly vests jurisdiction on the CTA over petitions questioning the non-imposition by the

DTI Secretary of safeguard measures. The Court is simply asserting, as it should, the clear

intent of the legislature in enacting the SMA. Without in connection with or a synonymous

phrase, the Court would be compelled to favor the respondents position that only rulings

imposing safeguard measures may be elevated on appeal to the CTA. But considering that thestatute does make use of the phrase, there is little sense in delving into alternate scenarios.

Respondents fail to convincingly address the absurd consequences pointed out by the

Decision had their proposed interpretation been adopted. Indeed, suffocated beneath the

respondents legalistic tinsel is the elemental questionwhat sense is there in vestingjurisdiction on the CTA over a decision to impose a safeguard measure, but not on one choosing

not to impose. Of course, it is not for the Court to inquire into the wisdom of legislative acts,

hence the rule that jurisdiction must be expressly vested and not presumed. Yet ultimately,

respondents muddle the issue by making it appear that the Decisionhas uniquely expanded the

jurisdictional rules. For the respondents, the proper statutory interpretation of the crucial phrase

in connection with is to pretend that the phrase did not exist at all in the statute. The Court, intaking the effort to examine the meaning and extent of the phrase, is merely giving breath to the

legislative will.

The Court likewise stated that the respondents position calls for split jurisdiction, which is

judicially abhorred. In rebuttal, the public respondents cite Sections 2313 and 2402 of the Tariff

and Customs Code (TCC), which allegedly provide for a splitting of jurisdiction of the CTA.

According to public respondents, under Section 2313 of the TCC, a decision of theCommissioner of Customs affirming a decision of the Collector of Customs adverse to the

government is elevated for review to the Secretary of Finance. However, under Section 2402 of

the TCC, a ruling of the Commissioner of the Bureau of Customs against a taxpayer must be

appealed to the Court of Tax Appeals, and not to the Secretary of Finance.

Strictly speaking, the review by the Secretary of Finance of the decision of the

Commissioner of Customs is not judicial review, since the Secretary of Finance holds anexecutive and not a judicial office. The contrast is apparent with the situation in this case,


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wherein the interpretation favored by the respondents calls for the exercise of judicial review by

two different courts over essentially the same questionwhether the DTI Secretary should

impose general safeguard measures. Moreover, as petitioner points out, the executive

department cannot appeal against itself. The Collector of Customs, the Commissioner ofCustoms and the Secretary of Finance are all part of the executive branch. If the Collector of

Customs rules against the government, the executive cannot very well bring suit in courts

against itself. On the other hand, if a private person is aggrieved by the decision of the Collector

of Customs, he can have proper recourse before the courts, which now would be called upon toexercise judicial review over the action of the executive branch.

More fundamentally, the situation involving split review of the decision of the Collector ofCustoms under the TCC is not apropos to the case at bar. The TCC in that instance is quite

explicit on the divergent reviewing body or official depending on which party prevailed at the

Collector of Customs level. On the other hand, there is no such explicit expression of

bifurcated appeals in Section 29 of the SMA.

Public respondents likewise cite Fabian v. Ombudsman[45]

as another instance wherein theCourt purportedly allowed split jurisdiction. It is argued that the Court, in ruling that it was the

Court of Appeals which possessed appellate authority to review decisions of the Ombudsman in

administrative cases while the Court retaining appellate jurisdiction of decisions of the

Ombudsman in non-administrative cases, effectively sanctioned split jurisdiction between the

Court and the Court of Appeals.[46]

Nonetheless, this argument is successfully undercut by Southern Cross, which points out

the essential differences in the power exercised by the Ombudsman in administrative cases and

non-administrative cases relating to criminal complaints. In the former, the Ombudsman may

impose an administrative penalty, while in acting upon a criminal complaint what the

Ombudsman undertakes is a preliminary investigation. Clearly, the capacity in which theOmbudsman takes on in deciding an administrative complaint is wholly different from that in

conducting a preliminary investigation. In contrast, in ruling upon a safeguard measure, the DTI

Secretary acts in one and the same role. The variance between an order granting or denying an

application for a safeguard measure is polar though emanating from the same equator, and

does not arise from the distinct character of the putative actions involved.

Philcemcor imputes intelligent design behind the alleged intent of Congress to limit CTAreview only to impositions of the general safeguard measures. It claims that there is a

necessary tax implication in case of an imposition of a tariff where the CTAs expertise is

necessary, but there is no such tax implication, hence no need for the assumption of jurisdiction

by a specialized agency, when the ruling rejects the imposition of a safeguard measure. But ofcourse, whether the ruling under review calls for the imposition or non-imposition of the

safeguard measure, the common question for resolution still is whether or not the tariff shouldbe imposed an issue definitely fraught with a tax dimension. The determination of the

question will call upon the same kind of expertise that a specialized body as the CTA

presumably possesses.

In response to the Courts observation that the setup proposed by respondents was novel,

unusual, cumbersome and unwise, public respondents invoke the maxim that courts should not

be concerned with the wisdom and efficacy of legislation.[47]

But this prescinds from the bogus

claim that the CTA may not exercise judicial review over a decision not to impose a safeguardmeasure, a prohibition that finds no statutory support. It is likewise settled in statutory

construction that an interpretation that would cause inconvenience and absurdity is not favored.

Respondents do not address the particular illogic that the Court pointed out would ensue if their


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position on judicial review were adopted. According to the respondents, while a ruling by the DTI

Secretary imposing a safeguard measure may be elevated on review to the CTA and assailedon the ground of errors in fact and in law, a ruling denying the imposition of safeguard measures

may be assailed only on the ground that the DTI Secretary committed grave abuse of

discretion. As stressed in the Decision, [c]ertiorari is a remedy narrow in its scope and

inflexible in its character. It is not a general utility tool in the legal workshop.[48]

It is incorrect to say that the Decision bars any effective remedy should the TariffCommission act or conclude erroneously in making its determination whether the factual

conditions exist which necessitate the imposition of the general safeguard measure. If the Tariff

Commission makes a negative final determination, the DTI Secretary, bound as he is by this

negative determination, has to render a decision denying the application for safeguard

measures citing the Tariff Commissions findings as basis. Necessarily then, such negativedetermination of the Tariff Commission being an integral part of the DTI Secretarys ruling would

be open for review before the CTA, which again is especially qualified by reason of its expertise

to examine the findings of the Tariff Commission. Moreover, considering that the Tariff

Commission is an instrumentality of the government, its actions (as opposed to those

undertaken by the DTI Secretary under the SMA) are not beyond the pale of certiorarijurisdiction. Unfortunately for Philcemcor, it hinged its cause on the claim that the DTISecretarys actions may be annulled on certiorari, notwithstanding the explicit grant of judicial

review over that cabinet members actions under the SMA to the CTA.

Finally on this point, Philcemcor argues that assuming this Courts interpretation of Section

29 is correct, such ruling should not be given retroactive effect, otherwise, a gross violation of

the right to due process would be had. This erroneously presumes that it was this Court, and

not Congress, which vested jurisdiction on the CTA over rulings of non-imposition rendered bythe DTI Secretary. We have repeatedly stressed that Section 29 expressly confers CTA

jurisdiction over rulings in connection with the imposition of the safeguard measure, and the

reassertion of this point in the Decisionwas a matter of emphasis, not of contrivance. The dueprocess protection does not shield those who remain purposely blind to the express rules that

ensure the sporting play of procedural law.

Besides, respondents claim would also apply every time this Court is compelled to settle anovel question of law, or to reverse precedent. In such cases, there would always be litigants

whose causes of action might be vitiated by the application of newly formulated judicial

doctrines. Adopting their claim would unwisely force this Court to treat its dispositions in

unprecedented, sometimes landmark decisions not as resolutions to the live cases or

controversies, but as legal doctrine applicable only to future litigations.

II. Positive Final DeterminationBy the Tariff Commission an

Indispensable Requisite to the

Imposition of General Safeguard Measures

The second core ruling in the Decisionwas that contrary to the holding of the Court of

Appeals, the DTI Secretary was barred from imposing a general safeguard measure absent a

positive final determination rendered by the Tariff Commission. The fundamental premise rooted

in this ruling is based on the acknowledgment that the required positive final determination ofthe Tariff Commission exists as a properly enacted constitutional limitation imposed on the

delegation of the legislative power to impose tariffs and imposts to the President under Section

28(2), Article VI of the Constitution.


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Congressional Limitations Pursuant

To Constitutional Authority on theDelegated Power to Impose

Safeguard Measures

The safeguard measures imposable under the SMA generally involve duties on imported

products, tariff rate quotas, or quantitative restrictions on the importation of a product into the

country. Concerning as they do the foreign importation of products into the Philippines, thesesafeguard measures fall within the ambit of Section 28(2), Article VI of the Constitution, whichstates:

The Congress may, by law, authorize the President to fix within specified limits, and subject to such

limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and

wharfage dues, and other duties or imposts within the framework of the national development program of

the Government.[49]

The Court acknowledges the basic postulates ingrained in the provision, and, hence,

governing in this case. They are:

(1) It is Congress which authorizes the President to impose tariff rates, import and

export quotas, tonnage and wharfage dues, and other duties or imposts. Thus, the

authority cannot come from the Finance Department, the National Economic DevelopmentAuthority, or the World Trade Organization, no matter how insistent or persistent these bodies

may be.

(2) The authorization granted to the President must be embodied in a law. Hence, the

justification cannot be supplied simply by inherent executive powers. It cannot arise from

administrative or executive orders promulgated by the executive branch or from the wisdom or

whim of the President.

(3) The authorization to the President can be exercised only within the specified

limits set in the law and is further subject to limitations and restrictions which Congress

may impose. Consequently, if Congress specifies that the tariff rates should not exceed a

given amount, the President cannot impose a tariff rate that exceeds such amount. If Congress

stipulates that no duties may be imposed on the importation of corn, the President cannot

impose duties on corn, no matter how actively the local corn producers lobby the President.Even the most picayune of limits or restrictions imposed by Congress must be observed by the

President.

There is one fundamental principle that animates these constitutional postulates. Theseimpositions under Section 28(2), Article VI fall within the realm of the power of taxation, a

power which is within the sole province of the legislature under the Constitution.

Without Section 28(2), Article VI, the executive branch has no authority to imposetariffs and other similar tax levies involving the importation of foreign goods. Assuming

that Section 28(2) Article VI did not exist, the enactment of the SMA by Congress would be

voided on the ground that it would constitute an undue delegation of the legislative power to tax.

The constitutional provision shields such delegation from constitutional infirmity, and should be

recognized as an exceptional grant of legislative power to the President, rather than the

affirmation of an inherent executive power.

This being the case, the qualifiers mandated by the Constitution on this presidential

authority attain primordial consideration. First, there must be a law, such as the SMA. Second,

there must be specified limits, a detail which would be filled in by the law. And further, Congress

is further empowered to impose limitations and restrictions on this presidential authority. On this


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last power, the provision does not provide for specified conditions, such as that the limitations

and restrictions must conform to prior statutes, internationally accepted practices, acceptedjurisprudence, or the considered opinion of members of the executive branch.

The Court recognizes that the authority delegated to the President under Section 28(2),

Article VI may be exercised, in accordance with legislative sanction, by the alter egosof the

President, such as department secretaries. Indeed, for purposes of the Presidents exercise of

power to impose tariffs under Article VI, Section 28(2), it is generally the Secretary of Finance

who acts as alter egoof the President. The SMA provides an exceptional instance wherein it isthe DTI or Agriculture Secretary who is tasked by Congress, in their capacities as alter egos of

the President, to impose such measures. Certainly, the DTI Secretary has no inherent power,

even as alter egoof the President, to levy tariffs and imports.

Concurrently, the tasking of the Tariff Commission under the SMA should be likewise

construed within the same context as part and parcel of the legislative delegation of its inherent

power to impose tariffs and imposts to the executive branch, subject to limitations and

restrictions. In that regard, both the Tariff Commission and the DTI Secretary may be regarded

as agents of Congress within their limited respective spheres, as ordained in the SMA, in the

implementation of the said law which significantly draws its strength from the plenary legislative

power of taxation. Indeed, even the President may be considered as an agent of Congress

for the purpose of imposing safeguard measures. It is Congress, not the President,

which possesses inherent powers to impose tariffs and imposts. Without legislativeauthorization through statute, the President has no power, authority or right to impose

such safeguard measures because taxation is inherently legislative, not executive.

When Congress tasks the President or his/her alter egos to impose safeguard

measures under the delineated conditions, the President or the alter egosmay be

properly deemed as agents of Congress to perform an act that inherently belongs as a

matter of right to the legislature. It is basic agency law that the agent may not act beyond the

specifically delegated powers or disregard the restrictions imposed by the principal. In short,Congress may establish the procedural framework under which such safeguard measures may

be imposed, and assign the various offices in the government bureaucracy respective tasks

pursuant to the imposition of such measures, the task assignment including the factual

determination of whether the necessary conditions exists to warrant such impositions. Under the

SMA, Congress assigned the DTI Secretary and the Tariff Commission their respective

functions[50]

in the legislatures scheme of things.

There is only one viable ground for challenging the legality of the limitations and restrictions

imposed by Congress under Section 28(2) Article VI, and that is such limitations and restrictions

are themselves violative of the Constitution. Thus, no matter how distasteful or noxious theselimitations and restrictions may seem, the Court has no choice but to uphold their validity unless

their constitutional infirmity can be demonstrated.

What are these limitations and restrictions that are material to the present case? The entire

SMA provides for a limited framework under which the President, through the DTI and

Agriculture Secretaries, may impose safeguard measures in the form of tariffs and similar

imposts. The limitation most relevant to this case is contained in Section 5 of the SMA,captioned Conditions for the Application of General Safeguard Measures, and stating:

The Secretary shall apply a general safeguard measure upon a positive final determination of the

[Tariff] Commissionthat a product is being imported into the country in increased quantities, whetherabsolute or relative to the domestic production, as to be a substantial cause of serious injury or threat

thereof to the domestic industry; however, in the case of non-agricultural products, the Secretary shall

first establish that the application of such safeguard measures will be in the public interest.[51]


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Positive Final Determination

By Tariff Commission PlainlyRequired by Section 5 of SMA

There is no question that Section 5 of the SMA operates as a limitation validly imposed by

Congress on the presidential[52]

authority under the SMA to impose tariffs and imposts. That

the positive final determination operates as an indispensable requisite to the imposition of thesafeguard measure, and that it is the Tariff Commission which makes such determination, are

legal propositions plainly expressed in Section 5 for the easy comprehension for everyone but

respondents.

Philcemcor attributes this Courts conclusion on the indispensability of the positive final

determination to flawed syllogism in that we read the proposition if A then B as if it stated if A,

and only A, then B.[53]

Translated in practical terms, our conclusion, according to Philcemcor,

would have only been justified had Section 5 read shall apply a general safeguard measure

upon, and only upon, a positive final determination of the Tariff Commission.

Statutes are not designed for the easy comprehension of the five-year old child. Certainly,

general propositions laid down in statutes need not be expressly qualified by clauses denoting

exclusivity in order that they gain efficacy. Indeed, applying this argument, the President would,under the Constitution, be authorized to declare martial law despite the absence of the invasion,

rebellion or public safety requirement just because the first paragraph of Section 18, Article VII

fails to state the magic word only.[54]

But let us for the nonce pursue Philcemcors logic further. It claims that since Section 5does not allegedly limit the circumstances upon which the DTI Secretary may impose general

safeguard measures, it is a worthy pursuit to determine whether the entire context of the SMA,as discerned by all the other familiar indicators of legislative intent supplied by norms of

statutory interpretation, would justify safeguard measures absent a positive final determination

by the Tariff Commission.

The first line of attack employed is on Section 5 itself, it allegedly not being as clear as itsounds. It is advanced that Section 5 does not relate to the legal ability of either the Tariff

Commission or the DTI Secretary to bind or foreclose review and reversal by one or the other.

Such relationship should instead be governed by domestic administrative law and remedial law.

Philcemcor thus would like to cast the proposition in this manner: Does it run contrary to our

legal order to assert, as the Court did in its Decision, that a body of relative junior competence

as the Tariff Commission can bind an administrative superior and cabinet officer, the DTISecretary? It is easy to see why Philcemcor would like to divorce this DTI Secretary-Tariff

Commission interaction from the confines of the SMA. Shorn of context, the notion would seem

radical and unjustifiable that the lowly Tariff Commission can bind the hands and feet of the DTI

Secretary.

It can be surmised at once that respondents preferred interpretation is based not on the

express language of the SMA, but from implications derived in a roundabout manner. Certainly,no provision in the SMA expressly authorizes the DTI Secretary to impose a general safeguard

measure despite the absence of a positive final recommendation of the Tariff Commission. On

the other hand, Section 5 expressly states that the DTI Secretary shall apply a general

safeguard measure upon a positive final determination of the [Tariff] Commission. The causalconnection in Section 5 between the imposition by the DTI Secretary of the general safeguard

measure and the positive final determination of the Tariff Commission is patent, and evenrespondents do not dispute such connection.


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As stated earlier, the Court in its Decisionfound Section 5 to be clear, plain and free from

ambiguity so as to render unnecessary resort to the congressional records to ascertainlegislative intent. Yet respondents, on the dubitable premise that Section 5 is not as express as

it seems, again latch on to the record of legislative deliberations in asserting that there was no

legislative intent to bar the DTI Secretary from imposing the general safeguard measure anyway

despite the absence of a positive final determination by the Tariff Commission.

Let us take the bait for a moment, and examine respondents commonly cited portion of the

legislative record. One would presume, given the intense advocacy for the efficacy of thesecitations, that they contain a smoking gun express declarations from the legislators that the

DTI Secretary may impose a general safeguard measure even if the Tariff Commission refusesto render a positive final determination. Such smoking gun, if it exists, would characterize our

Decisionas disingenuous for ignoring such contrary expression of intent from the legislators

who enacted the SMA. But as with many things, the anticipation is more dramatic than the truth.

The excerpts cited by respondents are derived from the interpellation of the late

Congressman Marcial Punzalan Jr., by then (and still is) Congressman Simeon

Datumanong.[55]

Nowhere in these records is the view expressed that the DTI Secretary may

impose the general safeguard measures if the Tariff Commission issues a negative final

determination or otherwise is unable to make a positive final determination. Instead,

respondents hitch on the observations of Congressman Punzalan Jr., that the results of the

[Tariff] Commissions findings . . . is subsequently submitted to [the DTI Secretary] for the [DTI

Secretary] to impose or not to impose; and that the [DTI Secretary] here iswho would makethe final decision on the recommendation that is made by a more technical body [such as the

Tariff Commission].[56]

There is nothing in the remarks of Congressman Punzalan which contradict our Decision.

His observations fall in accord with the respective roles of the Tariff Commission and the DTISecretary under the SMA. Under the SMA, it is the Tariff Commission that conducts an

investigation as to whether the conditions exist to warrant the imposition of the safeguard

measures. These conditions are enumerated in Section 5, namely; that a product is being

imported into the country in increased quantities, whether absolute or relative to the domestic

production, as to be a substantial cause of serious injury or threat thereof to the domestic

industry. After the investigation of the Tariff Commission, it submits a report to the DTISecretary which states, among others, whether the above-stated conditions for the imposition of

the general safeguard measures exist. Upon a positive final determination that these conditions

are present, the Tariff Commission then is mandated to recommend what appropriate safeguard

measures should be undertaken by the DTI Secretary. Section 13 of the SMA gives five (5)

specific options on the type of safeguard measures the Tariff Commission recommends to theDTI Secretary.

At the same time, nothing in the SMA obliges the DTI Secretary to adopt the

recommendations made by the Tariff Commission. In fact, the SMA requires that the DTI

Secretary establish that the application of such safeguard measures is in the public interest,

notwithstanding the Tariff Commissions recommendation on the appropriate safeguard measure

upon its positive final determination. Thus, even if the Tariff Commission makes a positive final

determination, the DTI Secretary may opt not to impose a general safeguard measure, orchoose a different type of safeguard measure other than that recommended by the Tariff

Commission.

Congressman Punzalan was cited as saying that the DTI Secretary makes the decision to

impose or not to impose, which is correct since the DTI Secretary may choose not to impose a

safeguard measure in spite of a positive final determination by the Tariff Commission.


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Congressman Punzalan also correctly stated that it is the DTI Secretary who makes the final

decision on the recommendation that is made [by the Tariff Commission], since the DTISecretary may choose to impose a general safeguard measure different from that

recommended by the Tariff Commission or not to impose a safeguard measure at all. Nowhere

in these cited deliberations was Congressman Punzalan, or any other member of Congress for

that matter, quoted as saying that the DTI Secretary may ignore a negative determination by the

Tariff Commission as to the existence of the conditions warranting the imposition of general

safeguard measures, and thereafter proceed to impose these measures nonetheless. It is toolate in the day to ascertain from the late Congressman Punzalan himself whether he had made

these remarks in order to assure the other legislators that the DTI Secretary may impose the

general safeguard measures notwithstanding a negative determination by the Tariff

Commission. But certainly, the language of Section 5 is more resolutory to that question than

the recorded remarks of Congressman Punzalan.

Respondents employed considerable effort to becloud Section 5 with undeserved ambiguityin order that a proper resort to the legislative deliberations may be had. Yet assuming that

Section 5 deserves to be clarified through an inquiry into the legislative record, the excerpts

cited by the respondents are far more ambiguous than the language of the assailed provision

regarding the key question of whether the DTI Secretary may impose safeguard measures inthe face of a negative determination by the Tariff Commission. Moreover, even Southern Cross

counters with its own excerpts of the legislative record in support of their own view.[57]

It will not be difficult, especially as to heavily-debated legislation, for two sides with

contrapuntal interpretations of a statute to highlight their respective citations from the legislative

debate in support of their particular views.[58]

A futile exercise of second-guessing is happilyavoided if the meaning of the statute is clear on its face. It is evident from the text of Section

5 that there must be a positive final determination by the Tariff Commission that a

product is being imported into the country in increased quantities (whether absolute orrelative to domestic production), as to be a substantial cause of serious injury or threat

to the domestic industry. Any disputation to the contrary is, at best, the product of wishful

thinking.

For the same reason that Section 5 is explicit as regards the essentiality of a positive final

determination by the Tariff Commission, there is no need to refer to the Implementing Rules of

the SMA to ascertain a contrary intent. If there is indeed a provision in the Implementing Rules

that allows the DTI Secretary to impose a general safeguard measure even without the positive

final determination by the Tariff Commission, said rule is void as it cannot supplant the express

language of the legislature. Respondents essentially rehash their previous arguments on this

point, and there is no reason to consider them anew. The Decisionmade it clear that nothing inRule 13.2 of the Implementing Rules, even though captioned Final Determination by the

Secretary, authorizes the DTI Secretary to impose a general safeguard measure in the absence

of a positive final determination by the Tariff Commission.[59]

Similarly, the Rules andRegulations to Govern the Conduct of Investigation by the Tariff Commission Pursuant to

Republic Act No. 8800 now cited by the respondent does not contain any provision that the DTI

Secretary may impose the general safeguard measures in the absence of a positive final

determination by the Tariff Commission.

Section 13 of the SMA further bolsters the interpretation as argued by Southern Cross and

upheld by the Decision. The first paragraph thereof states that [u]pon its positive determination,the [Tariff] Commission shall recommend to the Secretary an appropriate definitive measure,

clearly referring to the Tariff Commission as the entity that makes the positive determination. On

the other hand, the penultimate paragraph of the same provision states that [i]n the event of a


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negative final determination, the DTI Secretary is to immediately issue through the Secretary of

Finance, a written instruction to the Commissioner of Customs authorizing the return of the cashbonds previously collected as a provisional safeguard measure. Since the first paragraph of the

same provision states that it is the Tariff Commission which makes the positive determination, it

necessarily follows that it, and not the DTI Secretary, makes the negative final determination as

referred to in the penultimate paragraph of Section 13.[60]

The Separate Opinion considers as highly persuasive of former Tariff Commission

Chairman Abon, who stated that the Commissions findings are merely recommendatory.[61]

Again, the considered opinion of Chairman Abon is of no operative effect if the statute plainly

states otherwise, and Section 5 bluntly does require a positive final determination by the Tariff

Commission before the DTI Secretary may impose a general safeguard measure.[62]

Certainly,

the Court cannot give controlling effect to the statements of any public officer in serious denial of

his duties if the law otherwise imposes the duty on the public office or officer.

Nonetheless, if we are to render persuasive effect on the considered opinion of the

members of the Executive Branch, it bears noting that the Secretary of the Department ofJustice rendered an Opinion wherein he concluded that the DTI Secretary could not impose a

general safeguard measure if the Tariff Commission made a negative final determination.[63]

Unlike Chairman Abons impromptu remarks made during a hearing, the DOJ Opinion was

rendered only after a thorough study of the question after referral to it by the DTI. The DOJ

Secretary is the alter egoof the President with a stated mandate as the head of the principal law

agency of the government.[64]

As the DOJ Secretary has no denominated role in the SMA, he

was able to render his Opinion from the vantage of judicious distance. Should not his Opinion,

studied and direct to the point as it is, carry greater weight than the spontaneous remarks of the

Tariff Commissions Chairman which do not even expressly disavow the binding power of theCommissions positive final determination?

III. DTI Secretary has No Power of Review

Over Final Determination of the Tariff Commission

We should reemphasize that it is only because of the SMA, a legislative enactment, that the

executive branch has the power to impose safeguard measures. At the same time, by

constitutional fiat, the exercise of such power is subjected to the limitations and restrictionssimilarly enforced by the SMA. In examining the relationship of the DTI and the Tariff

Commission as established in the SMA, it is essential to acknowledge and consider these

predicates.

It is necessary to clarify the paradigm established by the SMA and affirmed by the

Constitution under which the Tariff Commission and the DTI operate, especially in light of the

suggestions that the Courts rulings on the functions of quasi-judicial power find application inthis case. Perhaps the reflexive application of the quasi-judicial doctrine in this case, rooted as

it is in jurisprudence, might allow for some convenience in ruling, yet doing so ultimately betrays

ignorance of the fundamental power of Congress to reorganize the administrative structure of

governance in ways it sees fit.

The Separate Opinionoperates from wholly different premises which are incomplete. Its

main stance, similar to that of respondents, is that the DTI Secretary, acting as alter ego of thePresident, may modify and alter the findings of the Tariff Commission, including the latters


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negative final determination by substituting it with his own negative final determination to pave

the way for his imposition of a safeguard measure.[65]

Fatally, this conclusion is arrived at

without considering the fundamental constitutional precept under Section 28(2), Article VI, on

the ability of Congress to impose restrictions and limitations in its delegation to the President to

impose tariffs and imposts, as well as the express condition of Section 5 of the SMA requiring a

positive final determination of the Tariff Commission.

Absent Section 5 of the SMA, the President has no inherent, constitutional, orstatutory power to impose a general safeguard measure. Tellingly, the Separate Opinion

does not directly confront the inevitable question as to how the DTI Secretary may get away

with imposing a general safeguard measure absent a positive final determination from the Tariff

Commission without violating Section 5 of the SMA, which along with Section 13 of the same

law, stands as the only direct legal authority for the DTI Secretary to impose such measures.This is a constitutionally guaranteed limitation of the highest order, considering that the

presidential authority exercised under the SMA is inherently legislative.

Nonetheless, the Separate Opinionbrings to fore the issue of whether the DTI Secretary,

acting either as alter ego of the President or in his capacity as head of an executive department,

may review, modify or otherwise alter the final determination of the Tariff Commission under the

SMA. The succeeding discussion shall focus on that question.

Preliminarily, we should note that none of the parties question the designation of the DTI or

Agriculture secretaries under the SMA as the imposing authorities of the safeguard measures,

even though Section 28(2) Article VI states that it is the President to whom the power to impose

tariffs and imposts may be delegated by Congress. The validity of such designation under the

SMA should not be in doubt. We recognize that the authorization made by Congress in the SMA

to the DTI and Agriculture Secretaries was made in contemplation of their capacities as alteregosof the President.

Indeed, in Marc Donnelly & Associates v. Agregado[66]

the Court upheld the validity of a

Cabinet resolution fixing the schedule of royalty rates on metal exports and providing for their

collection even though Congress, under Commonwealth Act No. 728, had specifically

empowered the President and not any other official of the executive branch, to regulate andcurtail the export of metals. In so ruling, the Court held that the members of the Cabinet were

acting as alter egos of the President.[67]

In this case, Congress itself authorized the DTI

Secretary as alter ego of the President to impose the safeguard measures. If the Court was

previously willing to uphold the alter egos tariff authority despite the absence of explicit

legislative grant of such authority on the alter ego, all the more reason now when Congressitself expressly authorized the alter ego to exercise these powers to impose safeguard

measures.

Notwithstanding, Congress in enacting the SMA and prescribing the roles to be played

therein by the Tariff Commission and the DTI Secretary did not envision that the President, or

his/her alter ego, could exercise supervisory powers over the Tariff Commission. If trulyCongress intended to allow the traditional alter ego principle to come to fore in the peculiar

setup established by the SMA, it would have assigned the role now played by the DTI Secretary

under the law instead to the NEDA. The Tariff Commission is an attached agency of the National

Economic Development Authority,

[68]

which in turn is the independent planning agency of the

government.[69]


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The Tariff Commission does not fall under the administrative supervision of the DTI.[70]

On

the other hand, the administrative relationship between the NEDA and the Tariff Commission is

established not only by the Administrative Code, but similarly affirmed by the Tariff and Customs

Code.

Justice Florentino Feliciano, in his ponencia in Garcia v. Executive Secretary[71]

,

acknowledged the interplay between the NEDA and the Tariff Commission under the Tariff andCustoms Code when he cited the relevant provisions of that law evidencing such setup. Indeed,

under Section 104 of the Tariff and Customs Code, the rates of duty fixed therein are subject to

periodic investigation by the Tariff Commission and may be revised by the President upon

recommendation of the NEDA.[72]

Moreover, under Section 401 of the same law, it is upon

periodic investigations by the Tariff Commission and recommendation of the NEDA that the

President may cause a gradual reduction of protection levels granted under the law.[73]

At the same time, under the Tariff and Customs Code, no similar role or influence is

allocated to the DTI in the matter of imposing tariff duties. In fact, the long-standing tradition hasbeen for the Tariff Commission and the DTI to proceed independently in the exercise of their

respective functions. Only very recently have our statutes directed any significant interplay

between the Tariff Commission and the DTI, with the enactment in 1999 of Republic Act No.

8751 on the imposition of countervailing duties and Republic Act No. 8752 on the imposition of

anti-dumping duties, and of course the promulgation a year later of the SMA. In all these three

laws, the Tariff Commission is tasked, upon referral of the matter by the DTI, to determinewhether the factual conditions exist to warrant the imposition by the DTI of a countervailing duty,

an anti-dumping duty, or a general safeguard measure, respectively. In all three laws, the

determination by the Tariff Commission that these required factual conditions exist is necessary

before the DTI Secretary may impose the corresponding duty or safeguard measure. And in allthree laws, there is no express provision authorizing the DTI Secretary to reverse the factual

determination of the Tariff Commission.[74]

In fact, the SMA indubitably establishes that the Tariff Commission is no mere flunky of the

DTI Secretary when it mandates that the positive final recommendation of the former be

indispensable to the latters imposition of a general safeguard measure. What the law indicates

instead is a relationship of interdependence between two bodies independent of each otherunder the Administrative Code and the SMA alike. Indeed, even the ability of the DTI Secretary

to disregard the Tariff Commissions recommendations as to the particular safeguard measures

to be imposed evinces the independence from each other of these two bodies. This is properlyso for two reasons the DTI and the Tariff Commission are independent of each other under the

Administrative Code; and impropriety is avoided in cases wherein the DTI itself is the one

seeking the imposition of the general safeguard measures, pursuant to Section 6 of the SMA.

Thus, in ascertaining the appropriate legal milieu governing the relationship between the

DTI and the Tariff Commission, it is imperative to apply foremost, if not exclusively, the

provisions of the SMA. The argument that the usual rules on administrative control and

supervision apply between the Tariff Commission and the DTI as regards safeguard measures is

severely undercut by the plain fact that there is no long-standing tradition of administrative

interplay between these two entities.

Within the administrative apparatus, the Tariff Commission appears to be a lower rank

relative to the DTI. But does this necessarily mean that the DTI has the intrinsic right, absent

statutory authority, to reverse the findings of the Tariff Commission? To insist that it does, one

would have to concede for instance that, applying the same doctrinal guide, the Secretary of the


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Department of Science and Technology (DOST) has the right to reverse the rulings of the Civil

Aeronautics Board (CAB) or the issuances of the Philippine Coconut Authority (PCA). As withthe Tariff Commission-DTI, there is no statutory authority granting the DOST Secretary the right

to overrule the CAB or the PCA, such right presumably arising only from the position of

subordinacy of these bodies to the DOST. To insist on such a right would be to invite department

secretaries to interfere in the exercise of functions by administrative agencies, even in areas

wherein such secretaries are bereft of specialized competencies.

The Separate Opinionnotes that notwithstanding above, the Secretary of Department ofTransportation and Communication may review the findings of the CAB, the Agriculture

Secretary may review those of the PCA, and that the Secretary of the Department of

Environment and Natural Resources may pass upon decisions of the Mines and Geosciences

Board.[75]

These three officers may be alter egosof the President, yet their authority to reviewis limited to those agencies or bureaus which are, pursuant to statutes such as the

Administrative Code of 1987, under the administrative control and supervision of their respective

departments. Thus, under the express provision of the Administrative Code expressly provides

that the CAB is an attached agency of the DOTC

[76]

, and that the PCA is an attached agency of

the Department of Agriculture.[77]

The same law establishes the Mines and Geo-Sciences

Bureau as one of the Sectoral Staff Bureaus[78]

that forms part of the organizational structure of

the DENR.[79]

As repeatedly stated, the Tariff Commission does not fall under the administrative control of

the DTI, but under the NEDA, pursuant to the Administrative Code. The reliance made by the

Separate Opinionto those three examples are thus misplaced.

Nonetheless, the Separate Opinionasserts that the SMA created a functional relationshipbetween the Tariff Commission and the DTI Secretary, sufficient to allow the DTI Secretary toexercise alter ego powers to reverse the determination of the Tariff Commission. Again,

considering that the power to impose tariffs in the first place is not inherent in the President but

arises only from congressional grant, we should affirm the congressional prerogative to impose

limitations and restrictions on such powers which do not normally belong to the executive in the

first place. Nowhere in the SMA does it state that the DTI Secretary may impose general

safeguard measures without a positive final determination by the Tariff Commission, or that theDTI Secretary may reverse or even review the factual determination made by the Tariff

Commission.

Congress in enacting the SMA and prescribing the roles to be played therein by the TariffCommission and the DTI Secretary did not envision that the President, or his/her alter egocould

exercise supervisory powers over the Tariff Commission. If truly Congress intended to allow the

traditional alter egoprinciple to come to fore in the peculiar setup established by the SMA, itwould have assigned the role now played by the DTI Secretary under the law instead to the

NEDA, the body to which the Tariff Commission is attached under the Administrative Code.

The Court has no issue with upholding administrative control and supervision exercised by

the head of an executive department, but only over those subordinate offices that are attached

to the department, or which are, under statute, relegated under its supervision and control. To

declare that a department secretary, even if acting as alter egoof the President, may exercisesuch control or supervision over all executive offices below cabinet rank would lead to absurd

results such as those adverted to above. As applied to this case, there is no legal justification for

the DTI Secretary to exercise control, supervision, review or amendatory powers over the Tariff

Commission and its positive final determination. In passing, we note that there is, admittedly, a


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feasible mode by which administrative review of the Tariff Commissions final determination

could be had, but it is not the procedure adopted by respondents and now suggested foraffirmation. This mode shall be discussed in a forthcoming section.

The Separate Opinionasserts that the President, or his/her alter egocannot be made a

mere rubber stamp of the Tariff Commission since Section 17, Article VII of the Constitution

denominates the Chief Executive exercises control over all executive departments, bureaus and

offices.

[80]

But let us be clear that such executive control is not absolute. The definition of thestructure of the executive branch of government, and the corresponding degrees of

administrative control and supervision, is not the exclusive preserve of the executive. It may be

effectively be limited by the Constitution, by law, or by judicial decisions.

The Separate Opinion cites the respected constitutional law authority Fr. Joaquin Bernas, in

support of the proposition that such plenary power of executive control of the President cannotbe restricted by a mere statute passed by Congress. However, the cited passage from Fr.

Bernas actually states, Since the Constitution has given the President the power of control, with

all its awesome implications, it is the Constitution alone which can curtail such power.[81]

Does

the President have such tariff powers under the Constitution in the first place which may becurtailed by the executive power of control? At the risk of redundancy, we quote Section 28(2),Article VI: The Congress may, by law, authorize the President to fix within specified limits, and

subject to such limitations and restrictions as it may impose, tariff rates, import and export

quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the

national development program of the Government. Clearly the power to impose tariffs belongs

to Congress and not to the President.

It is within reason to assume the framers of the Constitution deemed it too onerous to spellout all the possible limitations and restrictions on this presidential authority to impose tariffs.

Hence, the Constitution especially allowed Congress itself to prescribe such limitations and

restrictions itself, a prudent move considering that such authority inherently belongs to

Congress and not the President. Since Congress has no power to amend the Constitution, it

should be taken to mean that such limitations and restrictions should be provided by mere

statute. Then again, even the presidential authority to impose tariffs arises only by merestatute. Indeed, this presidential privilege is both contingent in nature and legislative in

origin. These characteristics, when weighed against the aspect of executive control and

supervision, cannot militate against Congresss exercise of its inherent power to tax.

The bare fact is that the administrative superstructure, for all its unwieldiness, is mere putty

in the hands of Congress. The functions and mandates of the particular executive departments

and bureaus are not created by the President, but by the legislative branch through the

Administrative Code.[82]

The President is the administrative head of the executive department,

as such obliged to see that every government office is managed and maintained properly by the

persons in charge of it in accordance with pertinent laws and regulations, and empowered to

promulgate rules and issuances that would ensure a more efficient management of the

executive branch, for so long as such issuances are not contrary to law.[83]

Yet the legislature

has the concurrent power to reclassify or redefine the executive bureaucracy, including the

relationship between various administrative agencies, bureaus and departments, and ultimately,

even the power to abolish executive departments and their components, hamstrung only by

constitutional limitations. The DTI itself can be abolished with ease by Congress throughdeleting Title X, Book IV of the Administrative Code. The Tariff Commission can similarly be

abolished through legislative enactment.[84]


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At the same time, Congress can enact additional tasks or responsibilities on either the Tariff

Commission or the DTI Secretary, such as their respective roles on the imposition of generalsafeguard measures under the SMA. In doing so, the same Congress, which has the

putative authority to abolish the Tariff Commission or the DTI, is similarly empowered to

alter or expand its functions through modalities which do not align with established

norms in the bureaucratic structure. The Court is bound to recognize the legislative

prerogative to prescribe such modalities, no matter how atypical they may be, in affirmation of

the legislative power to restructure the executive branch of government.There are further limitations on the executive control adverted to by the Separate Opinion.

The President, in the exercise of executive control, cannot order a subordinate to disobey a final

decision of this Court or any courts. If the subordinate chooses to disobey, invoking sole

allegiance to the President, the judicial processes can be utilized to compel obeisance. Indeed,

when public officers of the executive department take their oath of office, they swear allegiance

and obedience not to the President, but to the Constitution and the laws of the land. Theinvocation of executive control must yield when under its subsumption includes an act that

violates the law.

The Separate Opinion concedes that the exercise of executive control and supervision by

the President is bound by the Constitution and law.[85]

Still, just three sentences after assertingthat the exercise of executive control must be within the bounds of the Constitution and law, the

Separate Opinion asserts, the control power of the Chief Executive emanates from the

Constitution; no act of Congress may validly curtail it.[86]

Laws are acts of Congress, hence

valid confusion arises whether the Separate Opinion truly believes the first proposition that

executive control is bound by law. This is a quagmire for the Separate Opinionto resolve foritself

The Separate Opinionunduly considers executive control as the ne plus ultraconstitutional

standard which must govern in this case. But while the President may generally have the power

to control, modify or set aside the actions of a subordinate, such powers may be constricted by

the Constitution, the legislature, and the judiciary. This is one of the essences of the check-

and-balance system in our tri-partite constitutional democracy. Not one head of a branch ofgovernment may operate as a Caesar within his/her particular fiefdom.

Assuming there is a conflict between the specific limitation in Section 28 (2), Article VI of the

Constitution and the general executive power of control and supervision, the former prevails in

the specific instance of safeguard measures such as tariffs and imposts, and would thus serve

to qualify the general grant to the President of the power to exercise control and supervision

over his/her subalterns.Thus, if the Congress enacted the law so that the DTI Secretary is bound by the Tariff

Commission in the sense the former cannot impose general safeguard measures absent a final

positive determination from the latter the Court is obliged to respect such legislative prerogative,

no matter how such arrangement deviates from traditional norms as may have been enshrined

in jurisprudence. The only ground under which such legislative determination as expressed in

statute may be successfully challenged is if such legislation contravenes the Constitution. No

such argument is posed by the respondents, who do not challenge the validity or

constitutionality of the SMA.

Given these premises, it is utterly reckless to examine the interrelationship between the

Tariff Commission and the DTI Secretary beyond the context of the SMA, applying instead

traditional precepts on administrative control, review and supervision. For that reason, the

Decisiondeemed inapplicable respondents previous citations of Cario v. Commissioner on

Human Rightsand Lamb v. Phipps, since the executive power adverted to in those cases had


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not been limited by constitutional restrictions such as those imposed under Section 28(2), Article

VI.[87]

A similar observation can be made on the case of Sharp International Marketing v. Court of

Appeals,[88]

now cited by Philcemcor, wherein the Court asserted that the Land Bank of the

Philippines was required to exercise independent judgment and not merely rubber-stamp deeds

of sale entered into by the Department of Agrarian Reform in connection with the agrarianreform program. Philcemcor attempts to demonstrate that the DTI Secretary, as with the Land

Bank of the Philippines, is required to exercise independent discretion and is not expected to

just merely accede to DAR-approved compensation packages. Yet again, such grant of

independent discretion is expressly called for by statute, particularly Section 18 of Rep. Act No.

6657 which specifically requires the joint concurrence of the landowner and the DAR and the[Land Bank of the Philippines] on the amount of compensation. Such power of review by the

Land Bank is a consequence of clear statutory language, as is our holding in the Decisionthat

Section 5 explicitly requires a positive final determination by the Tariff Commission before a

general safeguard measure may be imposed. Moreover, such limitations under the SMA are

coated by the constitutional authority of Section 28(2), Article VI of the Constitution.Nonetheless, is this administrative setup, as envisioned by Congress and enshrined into the

SMA, truly noxious to existing legal standards? The Decisionacknowledged the internal logic of

the statutory framework, considering that the DTI cannot exercise review powers over an

agency such as the Tariff Commission which is not within its administrative jurisdiction; that the

mechanism employed establishes a measure of check and balance involving two government

offices with different specializations; and that safeguard measures are the exception rather than

the rule, pursuant to our treaty obligations.[89]

We see no reason to deviate from these observations, and indeed can add similarly

oriented comments. Corollary to the legislative power to decree policies through legislation isthe ability of the legislature to provide for means in the statute itself to ensure that the said

policy is strictly implemented by the body or office tasked so tasked with the duty. As earlierstated, our treaty obligations dissuade the State for now from implementing default protectionist

trade measures such as tariffs, and allow the same only under specified conditions.[90]

The

conditions enumerated under the GATT Agreement on Safeguards for the application of

safeguard measures by a member country are the same as the requisites laid down in Section 5

of the SMA.[91]

To insulate the factual determination from political pressure, and to assure that

it be conducted by an entity especially qualified by reason of its general functions to undertakesuch investigation, Congress deemed it necessary to delegate to the Tariff Commission the

function of ascertaining whether or not the those factual conditions exist to warrant the atypical

imposition of safeguard measures. After all, the Tariff Commission retains a degree of relativeindependence by virtue of its attachment to the National Economic Development Authority, an

independent planning agency of the government,[92]

and also owing to its vaunted expertise

and specialization.

The matter of imposing a safeguard measure almost always involves not just one industry,

but the national interest as it encompasses other industries as well. Yet in all candor, any

decision to impose a safeguard measure is susceptible to all sorts of external pressures,especially if the domestic industry concerned is well-organized. Unwarranted impositions of

safeguard measures may similarly be detrimental to the national interest. Congress could not

be blamed if it desired to insulate the investigatory process by assigning it to a body with a


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putative degree of independence and traditional expertise in ascertaining factual conditions.

Affected industries would have cause to lobby for or against the safeguard measures. Thedecision-maker is in the unenviable position of having to bend an ear to listen to all concerned

voices, including those which may speak softly but carry a big stick. Had the law mandated that

the decision be made on the sole discretion of an executive officer, such as the DTI Secretary, it

would be markedly easier for safeguard measures to be imposed or withheld based solely on

political considerations and not on the factual conditions that are supposed to predicate the

decision.Reference of the binding positive final determination to the Tariff Commission is of course,

not a fail-safe means to ensure a bias-free determination. But at least the legislated involvement

of the Commission in the process assures some measure of measure of check and balance

involving two different governmental agencies with disparate specializations. There is no legal or

constitutional demand for such a setup, but its wisdom as policy should be acknowledged. As

prescribed by Congress, both the Tariff Commission and the DTI Secretary operate withinlimited frameworks, under which nobody acquires an undue advantage over the other.

We recognize that Congress deemed it necessary to insulate the process in requiring that

the factual determination to be made by an ostensibly independent body of specialized

competence, the Tariff Commission. This prescribed framework, constitutionally sanctioned, is

intended to prevent the baseless, whimsical, or consideration-induced imposition of safeguard

measures. It removes from the DTI Secretary jurisdiction over a matter beyond his putativespecialized aptitude, the compilation and analysis of picayune facts and determination of their

limited causal relations, and instead vests in the Secretary the broad choice on a matter within

his unquestionable competence, the selection of what particular safeguard measure would

assist the duly beleaguered local industry yet at the same time conform to national trade policy.

Indeed, the SMA recognizes, and places primary importance on the DTI Secretarys mandate to

formulate trade policy, in his capacity as the Presidents alter ego on trade, industry andinvestment-related matters.

At the same time, the statutory limitations on this authorized power of the DTI Secretary

must prevail since the Constitution itself demands the enforceability of those limitations and

restrictions as imposed by Congress. Policy wisdom will not save a law from infirmity if the

statutory provisions violate the Constitution. But since the Constitution itself provides that the

President shall be constrained by the limits and restrictions imposed by Congress and sincethese limits and restrictions are so clear and categorical, then the Court has no choice but to

uphold the reins.

Even assuming that this prescribed setup made little sense, or seemed uncommonly

silly,

[93]

the Court is bound by propriety not to dispute the wisdom of the legislature as long asits acts do not violate the Constitution. Since there is no convincing demonstration that the SMA

contravenes the Constitution, the Court is wont to respect the administrative regimen

propounded by the law, even if it allots the Tariff Commission a higher degree of puissance than

normally expected. It is for this reason that the traditional conceptions of administrative review

or quasi-judicial power cannot control in this case.

Indeed, to apply the latter concept would cause the Court to fall into a linguistic trap owingto the multi-faceted denotations the term quasi-judicial has come to acquire.

Under the SMA, the Tariff Commission undertakes formal hearings,[94]

receives and

evaluates testimony and evidence by interested parties,[95]

and renders a decision is renderedon the basis of the evidence presented, in the form of the final determination. The final

determination requires a conclusion whether the importation of the product under consideration


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is causing serious injury or threat to a domestic industry producing like products or directly

competitive products, while evaluating all relevant factors having a bearing on the situation of

the domestic industry.[96]

This process aligns conformably with definition provided by Blacks

Law Dictionary of quasi-judicial as the action, discretion, etc., of public administrative officers

or bodies, who are required to investigate facts, or ascertain the existence of facts, hold

hearings, weigh evidence, and draw conclusions from them, as a basis for their official action,

and to exercise discretion of a judicial nature.[97]

However, the Tariff Commission is not empowered to hear actual cases or controversies

lodged directly before it by private parties. It does not have the power to issue writs of injunction

or enforcement of its determination. These considerations militate against a finding of quasi-

judicial powers attributable to the Tariff Commission, considering the pronouncement thatquasi-judicial adjudication would mean a determination of rights privileges and duties resulting

in a decision or order which applies to a specific situation.[98]

Indeed, a declaration that the Tariff Commission possesses quasi-judicial powers, even if

ascertained for the limited purpose of exercising its functions under the SMA, may have theunfortunate effect of expanding the Commissions powers beyond that contemplated by law.

After all, the Tariff Commission is by convention, a fact-finding body, and its role under the SMA,

burdened as it is

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